The government's
fidelity to the Constitution is never more tested than in a time
of crisis. The urge to do something – or to appear to be doing something
– is nearly irresistible to those whom we have employed to protect
our freedom and to keep us safe. Regrettably, with each passing
violent crisis – Waco, Oklahoma City, Columbine, 9/11, Newtown and
now the Boston Marathon – our personal freedoms continue to slip
away, and the government itself remains the chief engine of that
slippage.

The American
people made a pact with the devil in the weeks and months following
9/11 when they bought the Bush-era argument that by surrendering
liberty they could buy safety. But that type of pact has never enhanced
either liberty or safety, and its fruits are always bitter.

The Constitution
is the supreme law of the land. It was written to create and to
restrain the federal government. Every person who works for any
government in the U.S. has taken an oath of fidelity to the Constitution,
not unlike the presidential oath, which induces a promise to preserve,
protect and defend the Constitution.

The chief and
final interpreter of the Constitution is the Supreme Court. One
may not always agree with its interpretations, but they are, as
legal scholars sometimes say, "infallible because they are final."
Those interpretations are particularly final when we have relied
on them for generations.

One of those
rulings underscores the primacy of constitutional protections, no
matter the environment in which they are claimed. Indeed, after
the Civil War had ended and President Lincoln was dead, the Supreme
Court in a case called Ex parte Milligan (1866) rebuked and reversed
Lincoln's unilateral assaults on personal freedoms in the North
and in so doing reminded us that the Constitution was written for
good times and for bad, and its protections cover all persons at
all times and under all circumstances who have any contact, voluntary
or not, with the government.